Conrad v. Trustees of the Grand Grove of the United Ancient Order of Druids

LtoN, J. The errors assigned relate only to the sufficiency of the tender. It is alleged that the same was not made to the plaintiff, but only to her husband; and, further, that the sum tendered was too little, in that money should have been tendered instead of - the notes and mortgage executed by the plaintiff’s husband to the defendants for part of the price of the lots in question; that the $125 paid by the defendants to Witt for use and occupation of the lots, pending the appeal in his case to this court, should not have been deducted from the sums paid them by the plaintiff’s husband on account of the lots; and that the tender should have included the value of permanent improvements made upon the lots by the plaintiff and her husband. These prop262 osi.tio.ns will be considered and briefly discussed in their order. 1. The trial court found that the tender was made to the plaintiff and also to her husband. The finding that it was made to the plaintiff is challenged for the alleged reason that there is no testimony to support it. Looking into the bill of exceptions we find that the plaintiff herself testified that during the year 1882, after she took her conveyance, her husband was her agent in relation to the lots. This testimony seems to be unqualified and undisputed. We think it sufficient to support the finding thus challenged. True, when the tender was made, the defendants had no actual notice that their grantee, Heinrich Conrad, had assigned his right of action for a breach of the covenants in his deed, and supposed he remained the real party in interest ; yet, inasmuch as he represented the real party in interest (the plaintiff), the tender to him operated as a tender to her, and she is bound by it. Moreover, the testimony tends to show that the plaintiff was present when the tender was made, and neither objected thereto nor asserted her right to the damages for such breach of the covenants in her husband’s deed. She testified at great length as a wfitness in her own behalf, but failed to deny that she was so present and knew all about the tender. We. should hesitate to disturb a finding that she was so present and knew of the tender, and is estopped, by such knowledge and by her silence when she ought to have spoken, to now assert that the tender-was insufficient because made to her husband alone. 2. Was it competent for the defendants to tender or offer to return the unpaid notes and mortgage of their grantee, given for a portion of the price of the lots ? or were they bound to tender in cash the amount unpaid on such notes ? The consideration named in the deed to Heinrich is $1,000. Notwithstanding the receipt of that sum is ac [263] knowledged therein by the usual formula, the proof is conclusive that Heinrich paid but $500 of that sum, leaving a like sum evidenced by his notes and mortgage unpaid; so when the securities were offered to be returned to him, and the money he had paid and interest thereon was offered to him, full indemnity for all he had paid on account of the lots was thereby tendered. That is all the law requires. "We should have been greatly surprised had the industrious counsel for the plaintiff found a single case to the contrary. But he has not. There would be neither equity nor reason in requiring the defendants to treat the notes of Conrad in their hands as so much cash received by them, for the purposes of a valid tender, thus compelling them to tak.e the chances of collecting the notes when due, and after the mortgage security had entirely failed with the failure ©f their title to the lots. The point is made that the tender of the securities was defective in that the notes were not canceled, nor a release of the mortgage tendered. We suppose that the delivery of the notes to the maker, with the mortgage, and the decree of the court divesting entirely the title of both the mortgagor and the mortgagee to the lots, operate as a pretty effectual cancellation of the notes and release of the mortgage. Besides, no objection was made to the tender because it was not accompanied by an offer of such cancellation and release. 3. The remaining assignments of error go to the rule of damages. They raise the question whether the defendants should be allowed the $125 they paid for the use and occupation of the lots pending the appeal of Witt’s case to this court, and whether the plaintiff can recover in this action the value of the permanent improvements which she and .her grantor placed upon the lots. In an action for a breach of the covenant of seizin, the measure of plaintiff’s damages is the consideration paid for [264] the land, and interest thereon from the date of payment. This rule is nearly or quite universal. In an action for a breach of the covenant for quiet enjoyment, the rule is not so uniform, but in many, probably most, of the states it is the same as in actions upon the covenant of seizin. Rawle, Cov. 242, and cases cited in notes. That rule of damages was adopted in this state in the early case of Blossom v. Knox, 3 Pin. 262, decided in 1851. We are not aware that it has since been changed or its accuracy questioned by this court. It seems to us that the rule as thus established rests upon a sound basis, and is the better and safer rule. We must, therefore, adhere to it until changed by the legislature. See Messer v. Oestreich, 52 Wis. 684, and cases cited in the opinion by Mr. Justice Cassoday ; McInnis v. Lyman, 62 Wis. 191; Lawton v. Howe, 14 Wis. 241. The rule thus established excludes both mesne profits and the value of permanent improvements as elements of damages. It gives the evicted covenantee interest on the consideration money he has paid, instead of mesne profits, and leaves him to his remedy against the evictor who has established a paramount title, to obtain pay for his improvements. Conrad sought this remedy in Witt’s action, but failed to obtain pay for his improvements because he had notice of Witt’s equities when he made them. 55 Wis. 376. The payment to Witt of the $125 was not a voluntary payment. The two principal officers of the corporation represented by the defendants became security on the appeal of Heinrich Conrad for the payment thereof in case the judgment appealed should be affirmed. They did this in their own names, it is true, but for and in behalf of and at the request of the corporation, which was the real surety. The judgment was affirmed, and the defendants paid the money out of the funds of the corporation, as in justice and equity they were .bound to do. We have already seen that the plaintiff’s husband was primaiily liable for the [265] amount. Hence, in assessing Ms damages for the breach, of Ms covenants, the amount should be allowed to the defendants. It was therefore properly deducted in the tender from the amount the covenantee had paid for the lots. The plaintiff stands in no better or different position than would her husband had be never made a conveyance of the lots and were he the plaintiff in the action instead of his wife. "We have no question here of the liability of the defendants for the costs and expenses of the covenantee in "Witt’s action. These were all paid by the defendants, as were also the mesne profits down to the time Oonrad took his appeal to this court. We conclude that none of the alleged errors are well assigned, and must therefore affirm the judgment of the cir-cmt court. By the Court.— Judgment affirmed.